National Insurance Company Limited vs Smt. Ganga Devi And Another on 17 August, 2021

[Cites 12, Cited by 0]

Uttarakhand High Court

National Insurance Company Limited vs Smt. Ganga Devi And Another on 17 August, 2021

(Through Hybrid Mode) The appellant, Insurance Company, herein, has put a challenge to the impugned award, as it had been rendered by the Workmen Compensation Commissioner / Presiding Officer, Labour Court, Haldwani, District Nainital, in the proceedings of Employee Compensation Application No. 274 of 2014, Smt. Ganga Devi Vs. Shri Pitamber Kandpal and another, whereby, the learned Presiding Officer, Labour Court, Haldwani, while adjudicating upon the award and the claim which was raised by the claimant, respondent No. 1, herein, had partially decreed the award in favour of the claimant, directing therein, to the Insurance Company to pay an amount of Rs.3,20,773/-, along with Rs. 5,000/- as an amount payable towards the funeral expenses, i.e. totalling to an amount of Rs.3,75,773/- to the claimants, as a compensation along with an interest payable on it @ 8%, from the date of accident, till the date of its actual payment.

2. The appellant, herein, i.e. the Insurance Company, and had invoked, Section 30 of the Workmen Compensation Act, 1923, hereinafter to be called as an Act of 1923, putting a challenge to the award on various counts, and particularly, the basic ground of challenge to the award dated 27.07.2015, was based on a premise, that 2 since the death had not occurred due to the "accident", and because of fact that, accordingly to the appellant, the cause of death was not or it cannot be attributed to have chanced during the course of employment, no compensation, at all could be paid to the claimants and particularly, by the Insurance Company itself, with whom, the offending vehicle, in question, was registered.

3. Further, the argument of the learned counsel for the appellant is that, if the provisions which are contained under the Workmen Compensation Act, 1923, are taken into consideration, in fact, the amount of compensation, which could be awarded by the Compensation Commissioner, he does not have a power to award the funeral expenses, as according to him none of the provisions contained therein under the Act, provides for the payment of funeral expenses, apart from it, it was contended that the interest as awarded, on the awarded amount, apart from the fact that, it was on the higher side, but the Workmen Compensation Commissioner, since has no power to levy interest on the awarded amount and hence, levying of the interest @ 8% from the date of the accident, too was not sustainable, in the eyes of law, being contrary to the provisions of Act of 1923.

4. It was further contended by the appellant's Counsel, for the Insurance Company, that since the claimant, prior to the initiation of the proceedings before the Compensation Commissioner, in the absence of there being a prior notice issued to them under Section 10 of the Act, the entire proceedings would be vitiated.

5. The learned counsel for the appellant/Insurance Company, had submitted, that after the occurrence of the alleged accident, the deceased, when he fainted and became unconscious, he was taken to the hospital and before he could reach, to the hospital, he met with the sad demise, however, later on, an FIR was also alleged to have been registered and a post mortem was conducted on the 3 deceased, but as per the opinion which was expressed by the Doctor, who conducted the post mortem on the deceased, had not been able to ascertain or opined any specific reason for the cause of death, and rather the visera was preserved, which was later on sent for examination in the FSL Laboratory.

6. But, for the purposes of scrutinizing the aforesaid set of arguments, the brief facts, which are necessarily required to be considered by this Court, for the purposes of arriving at a logical conclusion, are that the facts, which apparently engages consideration, are that the bus, in question, i.e. bearing registration No. UK-04- PA/0170, the owner of which, was respondent No. 2, was being plied under a contract with the KMOU Limited, and on the date of the incident, i.e. 11th March, 2012, it was contended that the bus, in question, was being used for purposes of carrying a marriage party, from Ratighat to Vishalkote, in which, the deceased late Mr. Shankar Singh, the husband of the claimant respondent No.1, was working as a Conductor, in the Bus.

7. It is the case pleaded by the parties before the Compensation Commissioner, that on the date of incident of 11th March, 2021, when the aforesaid marriage party reached at the place of marriage of the bride, after attending the marriage party and after having dinner, the deceased late Mr. Shankar Singh, is said to have returned back and was sitting in a stationery bus, which had carried the marriage party, and there while sitting in the bus, he suffered a severe pain in his chest, which however, could be witnessed and recognized by the Driver of the bus Mr. Ramesh Chandra, who took the deceased late Mr. Shankar Singh, to a nearby hospital at Kherna, where on reaching the hospital, he was declared to be dead.

8. The claimant's case was that, at the time of the incident of 11th March, 2012, the deceased late Mr. Shankar Singh, who was then working as a Conductor, in the bus was drawing a salary of RS.

8,000/- p.m., apart from it, he was given an additional amount of Rs.50/- per day, to meet his personal expenses, and at the time, when the accident has occurred since he was 46 years of age, she would be entitled for the payment of compensation to the tune of Rs. 6,65,160/-, apart from the interest payable on it @ 12% per annum.

9. In support of her contention, in the proceedings which were held before the Compensation Commissioner, the claimant had filed the written statement, apart from recording her statement as PW1, and the driver, who had appeared in the witness box in support of the witness of the claimant as PW2, apart from recording the oral statement, had also placed before the Court the copy of the FIR, the registration of licence of the deceased as a Conductor, panchanama, the copy of the post mortem report, the phot ID card, the fitness certificate of the bus, which was being plied on the date of the incident, the permit of the bus, the registration certificate, as well as the insurance policy, in order to substantiate, that on the date of the incident the bus was being validly plied, under the valid documents.

10. The owner of the bus, i.e. respondent No.2, herein, has in his statement, accepted the fact that the bus on the date of the incident was validly insured with the appellant which was valid for the period from 7th August, 2011 to 6th August, 2012. But, however, besides admitting the fact that the bus was validly insured and was carrying the requisite documents, and a valid permit, when it was being plied for the purposes of carrying the marriage party, but in order to deny the claim of compensation, in the written statement which was filed by the Insurance Company, appellant, herein, was on the ground that since in the absence of there being any valid ground or any fact of evidence which was ever adduced by the claimant, to substantiate that the cause of death, caused on account of an incident had accrued during the course of employment, the claimant would not be entitled for any claims as it has been prayed for in the Claim Petition.

11. The Insurance Company further submitted, that when the said incident occurred on 11th March, 2012, in fact, it was rather, it was incumbent on the owner of the vehicle, that a prior notice ought to have issued to the Insurance Company, parting with the information to the appellant, about the occurrence of the said incident, resulting to the death of Conductor, late Mr. Shankar Singh. Hence, in the absence of there being, any such prior notice, which was sent to the appellant, the claimant, would not be entitled for any compensation from the Insurance Company, though they might raise their claim from the principle employer of the deceased under Section 3 of the Act of 1923.

12. In the written statement which was thus filed, the Insurance Company, who has also specially had come up with the case before the Employees Compensation Commissioner, to the effect, that since there is no nexus or relationship of the cause of the death, having chanced during the course of employment, and as a result of an "accident", the Insurance Company cannot be made liable to pay the compensation because, there liability could be harnessed only when the fact is proved and established by evidence that the cause of death was an "accident". Though, during the course of argument, the learned counsel for the appellant has very fairly admitted the fact that he is not disputing the award, from the perspective that the death of the deceased late Mr. Shankar Singh, has not occurred during the "course of the employment". Hence, this question may not be of much concern to be answered by this Court, while deciding this matter, particularly, when the appellant himself admits the fact that the incident of 11th March, 2012, has chanced during the course of employment of the deceased late Mr. Shankar Singh. But the only distinction, which has been carved out by the appellant while pressing, the present Appeal from Order under Section 30 of the Act of 1923, was that for the purposes of claiming a compensation under the Act, it is not the exclusive employment, 6 which is a necessary fact and a factor to be considered for the grant of compensation, but what is more important is that the injury or death must have been caused because of the "accident".

13. The exception, which has been carved out by the learned counsel for the appellant, is that, under the given set of facts and circumstances of the present case, since there was no actual accident which has caused and since, the vehicle was not involved in any accident and in fact, the deceased after having his dinner, was casually sitting in the bus and hence it cannot be said that the cause of death, was an accident, which has chanced during the course of employment and, particularly, because of the fact that no cause of death, could be ascertained even by the Doctor, who conducted the post mortem on the deceased. His case is, that the appellant cannot be made liable to pay the amount of compensation under the Act of 1923, in view of the provisions contained under Section 64 (v) (B) of the Insurance Act. Because for harnessing liability of compensation on him both the aspect, i.e. 'during course of employment' and the 'accident' have to chance simultaneously.

14. Under the aforesaid backdrop and the tenacity of the argument, ultimately boiled down on a very confined conspicuous, which was raised by the learned counsel for the appellant, it was that since there was no accident, as such, no compensation would be made payable by the Insurance Company.

15. In order to meet the arguments, which had been extended by the learned counsel for the appellant, if the principle intention of the legislation is taken into consideration, it was an act which was notified on 5th March, 1923, whereby, it intended to protect a certain class of employees to be adequately compensated, for the injuries or death, caused because of the accident, and hence, the Act intended to provide for payment of compensation to the employees or their dependants in the case of injury or a death, which may or might have 7 chanced on account of his / or her engagement during the course of employment, and particularly because of accident.

16. If the basic intention of the Act, is taken into consideration, the amount thus made payable to an employee by way of compensation or his dependants in case of death, there are three basic elements, which are simultaneously and necessarily required to be satisfied :-

              i.     An accident;
              ii.    Injury or a death;

iii. That injury or death was during the course of employment.

17. Unfortunately, under the Act, the term accident has not been defined and, hence, the interpretation of the term 'Accident' could only be borrowed from the judicial precedence, which has determined as to how the term 'accident' would be interpreted, and to the situations, where the employer or the Insurance Company, could be made liable to pay the compensation for the injury or the death of an employee which is caused during the course of employment. The employer's liability under Section 3 of the Act, has been limited from the view that, if personal injuries are caused to an employee by an accident, arising out of in the "course of employment", the argument of the learned counsel for the appellant is that, since it was not an "accident" of the bus in its true and literal sense, in that eventuality, the liability of paying the compensation under Section 3 of the Act, ought not to have been fastened upon the employer. For the purposes of better dealing with the case, Section 3 of the Act of 1923 is extracted hereunder :-

"3. Employer's liability for compensation (1) If personal injury is caused to a 14[employee] by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable --

(a) in respect of any injury which does not result in the total or partial disablement of the [employee] for a period exceeding [three] days;

(b) in respect of any [injury, not resulting in death 3[or permanent total disablement] caused by] an accident which is directly attributable to--

(i) the [employee] having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the [employee] to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of [employees], or

(iii) the wilful removal or disregard by the [employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of [employee], [***].

[***] [(2) If a [employee] employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a [employee], whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a [employee] whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:

[Provided that if it is proved,--

(a) that a [employee] whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease 9 specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and

(b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:

Provided further that if it is proved that a [employee] who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.] [(2A) If a [employee] employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.] (3) [The Central Government or the State Government], after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply [,in the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State] [***] as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.] (4) Save as provided by [sub-sections (2), (2A)] and (3) no compensation shall be payable to a 10 [employee] in respect of any disease unless the disease is [***] directly attributable to a specific injury by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a [employee] in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a [employee] in any Court of law in respect of any injury -

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

(b) if an agreement has been come to between the [employee] and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act."

18. He further submitted that if the proviso to Section 3 of the Act, is taken into consideration, it is rather the onus, which has to be discharged by the employer, as well as the claimant themselves, to show and establish beyond doubt, that the injuries or the death was caused and was directly attributable to the accident and, in the absence of there being any established evidence or proof on record to the said fact on record, the claimants, would not be able to succeed in being awarded with the compensation by the appellant until and unless, they discharged their burden to prove, that the cause of death was an accident, which has chanced during the course of employment.

19. The issue, which would be of much more concern and which has also been alternatively argued by the claimant, before the Court below too, that though despite of the admitted fact that the deceased has died, while sitting in the bus, due to severe pain in the chest and because of the heart stroke, their contention is that since the death was caused during the course of employment, they would be entitled for the compensation, from the Insurance Company and the logic behind it, as it had been raised by the claimant in the written 11 statement, as well as the statement recorded by the witness PW1, Ganga Devi and PW2, i.e. Ramesh Chandra, the Driver of the bus. They have submitted that the cause of death of the deceased late Mr. Shankar Singh, was on account of the work stress, because he was continuously engaged in loading and unloading of the luggage of the members of the marriage party from the roof carrier of the bus, which has led to an extreme stress and, hence, the claimant would be entitled for the compensation from the insurance company, as stress being the cause of death, would make the appellant to pay the compensation, as it would fall within the ambit of policy.

20. On the contrary, the argument of the learned counsel for the Insurance Company, was that even if it is presumed for sake of argument, as extended by the claimant, that the cause of death was the stress, in that eventuality too, apart from the fact that the stress was not shown or pleaded as to be a cause of death, in the post mortem report, apart from it, the factum of stress was required to be proved by the claimants by leading evidence and since the claimants have not discharged their burden, they would not be entitled for the compensation, even if they contend that the cause of death was because of stress.

21. Ultimately, the learned counsel for the parties, to the present Appeal from Order, and particularly, the learned counsel for the appellant, has only solicited an answer and pressed his appeal from only one major perspective, i.e. "whether the sufferance of pain in the chest of the deceased, while sitting in the stationary bus, which ultimately, led to a heart stroke, causing the death, would amount to be an accident for the purposes of the Act of 1923" ?

22. As this Court has already observed that the term 'accident', has not been defined under the Act, hence, the learned counsel for the appellant, in order to substantiate his arguments, has 12 made reference to the various pronouncements, which had been rendered by the different Courts in order to substantiate his argument, that the fact and circumstances, under which, the death of the deceased was caused would not amount to be an accident to bring it within the ambit of the Act of 1923, which would be a pre condition to be established before, settling the compensation to be paid by the appellant.

23. In relation thereto, the reference has been made by the learned counsel for the appellant to the judgment reported in AIR 2006 SC 2830, Jyothi Ademma Vs. Plant Engineer, Nellore and another, and particularly, he has made a reference to para 8 of the said judgment, which had laid down, that the accident arising out of, in the course of the employment and the workmen having died as a result of the heart stroke at the work place, would only be taken into consideration, particularly, when the fact, that the deceased was suffering from a heart problem at the time when the death was caused and, in the absence of there being any proof to the contrary, if the fact of the reason for death is not attributable to the course of employment, it will not amount to be accident, for the purposes of the act for determining the compensation, payable by the Insurance Company.

24. According to the principles laid down by the aforesaid judgment of the Hon'ble Apex Court, it is not an exclusive stress of work, which is obviously bound to be proved, but that stress has to be also co-related to the nature of work and nature of work responsibility, which is being discharged, which would always be variable under a different set of cases and facts as involved therein, and since the claimant has not been able to establish and prove the fact of stress, hence, in view of the principle laid down in para 8 of the said judgment, the Insurance Company cannot be made liable to pay the compensation. Para 8 of the said judgment is extracted hereunder :-

"8. In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity."

25. The learned counsel for the appellant, in order to further substantiate his argument has made reference to certain paragraphs of the judgment of Jyothi Ademma (Supra) whereby, while interpreting the impact of personal injuries as contemplated under Section 3 of the Act, for making a person entitled for compensation, because the injuries were caused to him during the course of employment, the Hon'ble Apex Court has held, that it is always the burden of the claimants or the prosecution to establish by cogent evidence, that there was a casual connection between the death of the workmen and his nature of employment. Meaning thereby, the Hon'ble Apex Court has laid down that the employment exclusively in itself must be contributory to the cause of death, merely because of the fact that a person was suffering from a disease and had died because of the heart stroke, as it is in the instant case, that in itself exclusively will not fall to be an accident, though it might be that the incident has chanced during the course of employment.

26. In relation thereto, a reference may be had to para 5, 6, 7 and 8 of the said judgment, and ultimately, the conclusion, which has been drawn by the Hon'ble Apex Court in the said judgment, the reference of which, has been made by the learned counsel for the appellant, is that there has had to be an expression of accident to be proved by evidence and it cannot be in an ordinary sense it cannot be used as a word denoting a mis-happening or an untoward incident, exclusively, which has not been pre-conceived, nor expected or design, but it is a sudden occurrence, which takes place and that sudden occurrence for the purposes of the Act, would be treated to be 14 an accident, only when the claimant proves the fact by evidence that the act complained of, was directly had a nexus and relativity to the nature of employment and nature of work which was being discharged at the time when the incident has occurred. This could not have been the case in the present case because, according to the pleadings of the claimant themselves, the deceased after having his dinner, came inside the bus and was casually sitting and hence, the alleged period of stress, apart from that it was not proved, it was not prevailing at the time when the incident has chanced on 11th March, 2012, resulting to the death of the deceased. Hence, it could be said that the cause of death be directly made relatively applicable, to be the cause of an accident in order to make the appellant liable to pay the compensation. Para 5, 6, 7 and 8 of the said judgment are extracted hereunder :-

"5. Section 3(1) of the Act which is relevant for the purpose of this case reads as follows:

"3. Employer's liability for compensation.--(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to--

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen;"

6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if 15 the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.

7. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, L.C. in Trim Joint District School Board of Management v. Kelly as follows:

"I think that the context shows that in using the word 'designed' Lord Macnaghten was referring to designed by the sufferer.""

"8. In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity."

27. On another judgment, on which, the reliance has been placed by the learned counsel for the appellant is that reported in (2009) 13 SCC 405, Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Ltd. and another. In that case, the factual backdrop was that while determining the compensation under Section 3 of the Act, the driver of the owner's vehicle, who was instructed to carry the passengers to a particular destination, on reaching the place of destination, the driver on his own went to a nearby pond and while taking his bath, he slipped and was drowned, which had resulted into the death. In that case, the Hon'ble High Court had held that the insurer will not be liable to pay the compensation, but rather it would be recoverable from the employer, under Section 3 of the Act, for the reason being that the death, which was caused was not during the course of employment or because of a cause of accident, because it was after completing his professional responsibility of taking the passengers, to a particular pre-determined 16 destination, the deceased has on his own had travelled to the pond, where he met with the sad demise due to drowning. Hence, in that case, the Hon'ble Apex Court, was considering the principles, and particularly, the terminology used under law, i.e. "arising out of" and "in the course of employment". Since both these aspects were not established in the facts of the said case, the Court held that the Insurance Company, would not be liable to pay the compensation, that is what has been laid down in para 12 and 13 and of the said judgment, which is extracted hereunder :-

"12. "5. Section 3(1) of the Act which is relevant for the purpose of this case reads as follows:

'3. Employer's liability for compensation.--(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to--

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.'

6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies [a natural death because] of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.

7. The expression 'accident' means an untoward mishap which is not expected or designed. 'Injury' means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, L.C. in Trim Joint District School Board of Management v. Kelly as follows: (AC p.

676) '... I think that the context shews that in using the word "designed" [Lord Macnaghten] was referring to designed by the sufferer.' "

The above position was highlighted by this Court in Jyothi Ademma v. Plant Engineer at SCC pp. 514-15, paras 5-7.

13. "20. This Court in ESI Corpn. v. Francis De Costa4 referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig wherein it was held: (Isabella case, AC p. 199) '... Nothing could be simpler than the words "arising out of and in the course of the employment". It is clear that there are two conditions to be fulfilled. What arises "in the course" of the employment is to be distinguished from what arises "out of the employment". The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment--that is, directly or indirectly engaged on what he is employed to do--gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.'

21. We are not oblivious that an accident may cause an internal injury as was held in Fenton v. Thorley & Co. Ltd. by the Court of Appeal: (AC p. 448) '... I come, therefore, to the conclusion that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.' Lord Lindley opined: (Fenton case, AC p. 453) 'The word "accident" is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word "accident" is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned 18 by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.'

22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. case in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.

* * *

25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.

26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain.

* * *

31. In B.E.S.T. Undertaking v. Agnes, referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v.

Bai Valu Raja.

* * *

33. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mahmmed Issak9 this Court held: (SCC p. 611, para 5) '5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it". The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is 19 reasonable to believe the workman would not otherwise have suffered". In other words there must be a causal relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such--to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises "out of employment". To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.' "

28. In the aforesaid judgment, yet again, the Hon'ble Apex Court has reiterated the fact that for a claimant to be made entitled for the payment of the compensation, it is his burden which was mandatorily required to be discharged, that there is a casual connection of the "injury" and the "accident", during the "course of employment", and the onus to establish the same has to be discharged by the claimant, which was not performed in the instant case and hence, the Insurance Company could not be made liable to pay the compensation, as it has been determined by the impugned award dated 27.07.2015, under challenge. Also for the reason being that the claimants or the owner, had not been able to prove either by pleadings or by way of any evidence on record or even in their oral testimony, that, even the theory of stress is to be brought within the ambit of an accident, for the purposes of applying a welfare legislation, it was perhaps their burden, which was to be discharged to show, that while performing an official duty, there was an aggravation of stress on account of work, which has contributed to the accident.

29. Hence, it was held that the sudden and unexpected incident, which chances resulting into the death, cannot always be invariably made applicable in all circumstances, be treated as to be an accident, which could be related to have chanced during the course of employment because there are certain events, which chances even 20 beyond the course of employment, as it has happened in the instant case also.

30. Yet, another judgment, on which the reference has been made , by the appellant's Counsel is that reported in 1992 (1) TAC

206. Primarily, this judgment, it was on the backdrop that the employee, whose dependents have claimed a compensation, had contended in pleadings that the death in the said case was caused on account of stress and hence, they would be entitled for the compensation, but since the factum of stress, being always attributable to the nature of employment, was not proved to be established, the burden of which was required to be discharged by the claimants, the amount of compensation was not liable to be paid, by the appellant Insurance Company.

31. In yet, another judgment reported in 2007 (11) SCC 668, Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another, this was a case, yet again, where a person died because of the heart attack, wherein, the Hon'ble Apex Court has held that, that in itself exclusively cannot result into an automatic resumption that the same was caused by an accident. The said judgement of the Hon'ble Apex Court has quite elaborately had dealt with the said fact in its para 15, 16, 19, 20, 22, 23, 25, 26 and 28. The same are extracted hereunder :-

"15. The said Act was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term "accidental injury" has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What is necessary for attracting the charging provision contained in Section 3 of the Act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment.

16. Before we analyse the provisions of the Act, we may notice that in the claim petition, there was no allegation that (i) the deceased met with his death by reason of any strain of work; (ii) 21 appellant had no personal knowledge as regards quantum of or nature of work required to be performed by the deceased; and (iii) as to how severe strain during his service was caused.

19. Sufferance of heart disease amongst young persons is not unknown. A disease of heart may remain undetected. A person may suffer mild heart attack but he may not feel any pain. There must, thus, be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment.

20. This Court in ESI Corpn. referred to, with approval, the decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig3 wherein it was held: (All ER p. 563 G-H) "Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment--that is, directly or indirectly engaged on what he is employed to do--gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified."

22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.

23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.

25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.

26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain.

28. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf."

32. In a nutshell, if the principles, which had been laid down by the Hon'ble Apex Court, in the aforesaid judgment of Shakuntala Chandrakant Shreshti (Supra), are taken into consideration, a distinction has been made out therein, that since in the absence of accidental injury or accidental death, has not been defined under the Act, the liability of the employer from the payment of the compensation, would however still arise if a personal injury is caused or workmen dies during the course of employment. In fact, while considering the implications drawn from a judgment reported in 1940 AC 190, Dover Navigation Co. Ltd. Vs. Isabella Craig. In the said judgment, which was reported from the All Indian Reporter, it had dealt with, as to what would be the "course of employment", wherein, it has been held that it has to be distinguished from the words, "arising out of the employment", because the word relates to the condition, by reference to a man's service and the subsequent, part from it, deals with causality. Hence, being merely in the course of employment, if an incident changes resulting into the death, it may not always be universally said that it was arising out of an employment and since, as already observed above, in the instant case, it was not arising out of the employment, the compensation cannot be said to be fallen with in its specific definition, which yet again has been dealt 23 with by the Hon'ble Apex Court, in an another judgment reported in (1969) 2 SCC 607, Makinnon Mackenzie & Co. (P) Ltd. Vs. Ibrahim Mohd. Issak. Para 5 of the same is extracted hereunder :-

""5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. In other words there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such--to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.""

33. In which, the Hon'ble Apex Court has laid down that on the basis of the principles, which has been laid in the judgment reported in 1914 AC 667, Trim Joint District School Board of Management Vs. Kelly, in All Indian Reporter, it has been observed that accident means an untoward mis-happening, which is not expected or designed or planned and known to the human being, or the injuries, which means a psychological injuries too, there it has been held that the expression accident, in a popular and ordinary sense of word as denoting a mishap, which was not expected and invariably the said principle of mishap cannot be universally made applicable, under all the set of circumstances of the each case, which may be distinguishable under the facts of the said case.

34. In one of the recent judgments which has been rendered by the Hon'ble Apex Court in Civil Appeal No. 1836 of 2020, 24 Poonam Devi and others Vs. Oriental Insurance Co. Ltd., it was a case, yet again, where a driver of a truck TATA 407, after parking the vehicle, had went to river Yamuna to fetch water for bath, he slipped and got drowned in the canal and ultimately died. The Hon'ble Apex Court in para 2, 3, 7, 8 and 11 of the said judgement has held, which is extracted hereunder :-

"2. The deceased was aged 21 years, in the employment of respondent no.2 (since deleted), and was driving her TATA 407 vehicle bearing registration No.UP 15P 1689 on 11.06.2003 from Ambala to Meerut, a distance of approximately 200 Kms. At about 12.30 PM, when he approached the bridge near village Fatehpur, the deceased went to the Yamuna canal to fetch water and also to have a bath. Unfortunately, he slipped into the canal and died. The vehicle was insured with the respondent Insurance Company. P.W.2, who was standing near the bridge, deposed that the deceased had gone to fetch water in a can along with the cleaner who tried to save him, but both slipped into the canal. The Workmen's Compensation Commissioner by order dated 12.12.2005 allowed the claim as aforesaid.

3. The High Court in appeal by the Insurance Company held that the deceased may have died during the course of the employment but death did not arise out of the employment, as bathing in the canal was not incidental to the employment but was at the peril of the workman. There was no casual connection between the death of the workman and his employment. He had gone to fetch water for personal consumption and it was not his case that the truck was over heated.

7. The Workmen's Compensation Act, 1923 (now christened as "Employee's Compensation Act, 1923") is a piece of socially beneficial legislation. The provisions will therefore have to be interpreted in a manner to advance the purpose of the legislation, rather than to stultify it. In case of a direct conflict, when no reconciliation is possible, the statutory provision will prevail only then.

8. Relevant to the discussion is Section 3 of the Act. The relevant extract reads as follows:

"3. Employer' s liability for compensation. (1) If personal injury is caused to a workman by accident 25 arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

XXXX"

11. Coming to the facts of the present case, the deceased was driving the truck of respondent no.2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact that considering the manufacturer's specification, the cabin of the truck was not air conditioned and would have been a baking oven in the middle of the afternoon in the sultry monsoon heat of June 2003, when the temperature was touching 42.60C in Yamunagar (Haryana) (source: weatheronline.in). It was a compulsion for the deceased to stay fresh and alert not only to protect the truck of respondent no.2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. In these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment? Every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to ensure his own safety by a safe journey for himself has to be considered as incidental to the employment by extension of the notional employment theory. A truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bonafide errors of judgement by reason of the heat. The theory of notional extension noticed in the Agnes (supra) and followed in Leela Bai (supra) is extracted hereunder:

"9. In the facts of the present case and the nature of evidence, there was a clear nexus between the accident and the employment to apply the doctrine of "notional extension" of the employment considered in Agnes (supra) as follows: "...It is now wellsettled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all time this theory of notional extension."

35. There in the said ratio, it was held that the said nature of the accident, will not be exclusively treated as to be an accident, arising during the course of employment and, hence, the heirs of the deceased were held to be entitled for the benefit from the employer himself under Section 3 of the Act.

36. Hence, on overall scrutiny of the factual backdrop of the present case, and particularly in the light of the judgments referred to hereinabove, this Court is of the opinion that the cause of death of late Mr. Shankar Singh, when he suffered a heart stroke, though it was admittedly caused during the course of employment, which is a fact admitted to the parties to the proceedings, but one of the basic important elements, which was required to be satisfied and proved, whether it was as a result of an accident, since it was missing to be established, the cause of death of the deceased will not amount to be an accident, during the course of employment nor it would be treated as to be a death caused on account of the stress of work, because there was a sufficient time gap between the date and time of the incident and the alleged theory of stress of work (though not proved). Hence, the liability of the payment of compensation would be exclusively vested on the employer with whom the deceased was employed and not on the Insurance Company, in the light of the provisions contained under the Insurance Act.

37. Hence, the Appeal stands allowed qua the appellant only. However, the employer of the bus in question, i.e. respondent No. 2, herein, is directed to pay the amount of compensation as it had been determined. However, the said amount would be paid by the Insurance Company, to the claimants and would be recovered from the employer/respondent No. 2.

38. Subject to the above conditions, the Appeal from Order stands allowed. The impugned award is quashed qua the Insurance 27 Company and modified so far it relates to the owner of the vehicle, i.e. respondent No.2, herein.

(Sharad Kumar Sharma, J.) 17.08.2021 Shiv

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